United States v. Dooley, Crim. No. 71-686.

• Decision Date: 28 September 1973
• Docket Number: Crim. No. 71-686.
• Parties: UNITED STATES of America v. Harry A. DOOLEY.
• Court: U.S. District Court — Eastern District of Pennsylvania

364 F. Supp. 75

UNITED STATES of America v. Harry A. DOOLEY.

Crim. No. 71-686.

United States District Court, E. D. Pennsylvania.

September 28, 1973.

Gregory Magarity, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

Charles B. Burr, II, Obermayer, Rebbman, Maxwell & Hippel, Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

NEWCOMER, District Judge.

The petitioner, Harry A. Dooley, was indicted by a Federal Grand Jury in the above captioned case on December 2, 1971, and charged with conspiracy to violate Title 18, United States Code, Section 1954. Petitioner was also indicted by the same Federal Grand Jury on December 2, 1971, in Criminal No. 71-685 and charged with the same crimes.

On or about December 10, 1971, petitioner voluntarily appeared in the office of the United States Marshal to sign his own bond in the amount of One Thousand ($1,000) Dollars, in connection with both of the aforementioned indictments. As a result of petitioner's voluntary appearance in the office of the United States Marshal he was photographed and fingerprinted by agents, servants, and/or representatives of said office.

On October 24, 1972, petitioner was brought to trial before this Court in the above captioned case, and on October 27, 1972, the jury returned a verdict of "Not Guilty" on all counts of the indictment. As a result of petitioner's acquittal in the above captioned case, the United States Attorney's Office filed a motion to dismiss the indictment in Criminal No. 71-685, which motion was granted by the Honorable Edward R. Becker on November 1, 1972.

Petitioner, Harry A. Dooley, now moves this Court to expunge the fingerprints, photographs (including the negatives and all copies, prints and reproductions of said photographs) and record of his arrest (hereinafter "arrest records") in connection with the above captioned case on the grounds that the continued maintenance and use of the petitioner's arrest records, including fingerprints and photographs (1) has caused him irreparable harm, and (2) constitutes an invasion of privacy. The petitioner further alleges that the government's interest in retaining the records involved is clearly outweighed by the dangers of unwarranted adverse consequences to the petitioner.

The government opposes the expungement on the basis that the Court does not have jurisdiction to entertain such a motion at this time because the criminal action has been terminated, or if the Court should conclude that it has jurisdiction, there is no basis for granting the motion because (1) no federal statute authorizes such expungement, (2) petitioner cites no authority to support an expungement in a situation where the arrests themselves were based on probable cause and therefore legal, and (3) the retention of arrest, fingerprint and photographic records in and of themselves does not constitute an invasion of privacy.

This motion to expunge certain arrest records of the petitioner, Harry A. Dooley, presents this Court with a most important and troubling issue.¹ The core questions are whether and to what extent the petitioner's right of privacy has been and is being invaded by the retention of his arrest records in a case in which he has been acquitted of the charges made against him by a jury verdict and how this invasion, if any, should be balanced, if at all, against the government's legitimate interest in collecting and maintaining arrest records generally for purposes of effective criminal law enforcement.

Unresolved arrest records generally may well have significance for law enforcement purposes. They provide legitimate leads and questionable background information and may properly assist in resolving criminal actions. But charges resulting in acquittal clearly have no legitimate significance. Likewise, other charges which the government fails or refuses to press or which it withdraws are entitled to no greater legitimacy. They lose any tendency to show probable cause and should not be boot-strapped into any unearned and undeserved significance. Actually, a collection of dismissed, abandoned or withdrawn arrest records are no more than gutter rumors when measured against any standards of constitutional fairness to an individual and, along with records resulting in an acquittal are not entitled to any legitimate law enforcement credibility whatsoever.

Petitioner has not contended that these records have in fact been used outside the criminal law enforcement agencies authorized to maintain or receive such information although it is common knowledge that this information does from time to time find its way into the hands of unauthorized parties. Petitioner contends that the mere existence of his arrest records, in and of themselves, is an invasion of his right of privacy because of the great potential for harm these records now have should they leave the hands of the law enforcement agencies authorized to collect them. This Court is aware of the problems created by arrest records generally,² and we are especially concerned with the invasion of privacy of the individual where the information of arrest falls into the wrong hands.

Information denominated a record of arrest if it becomes known, may subject the individual to serious difficulties. Even if no direct economic loss is involved, the injury to an individual's reputation may be substantial footnote omitted. Economic losses themselves may be both direct and serious. Opportunities for schooling, employment, or professional licenses may be restricted or non-existent as a consequence of the mere fact of an arrest, even if followed by acquittal or complete exoneration of the charges involved footnote omitted. An arrest record may be used by the police in determining whether subsequently to arrest the individual concerned footnote omitted or whether to exercise their discretion to bring formal charges against an individual

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